State v. Poulin, 78-20-C
| Decision Date | 25 June 1980 |
| Docket Number | No. 78-20-C,78-20-C |
| Parties | STATE v. David R. POULIN. A. |
| Court | Rhode Island Supreme Court |
The defendant, David R. Poulin (Poulin), appeals from his convictions on one count of committing an abominable and detestable crime against nature and on two counts of indecent assault on the complainant, a nine-year-old girl. He claims that the trial justice admitted the testimony of three witnesses that contained inadmissible hearsay evidence. In addition to his hearsay contentions, Poulin asserts that the testimony of the complainant's mother, Sandra, included highly prejudicial allusions to assaults on the complainant other than those charged in the state's information.
Poulin lived with the complainant's family for two and one-half years in a number of Rhode Island and Massachusetts residences. He allegedly committed two of the offenses charged in Pawtucket on February 6, 1976. The other charge arose from an assault that allegedly occurred on June 30, 1976, in Providence.
At trial, the complainant testified to the following events. On the morning of June 30, 1976, Poulin sexually assaulted her in the bedroom that he shared with her mother. After the assault, she spent several hours in the company of her friends but did not at that time tell anyone of the assault. When she returned to the apartment in the late afternoon, Poulin called her back to the bedroom and again told her to lie down on the bed. He hugged her, and then allowed her to leave him without repeating the intimate contact that he had forced upon her in the morning. After she left Poulin, the complainant told Michael and Johnnie, two boys who lived upstairs, that "David told me to go to bed with him." She then went upstairs and related the morning's events to Carol, an adult neighbor, who required her to stay upstairs until her mother came home from work.
Sandra, the complainant's mother, arrived home from work at five o'clock that afternoon and encountered Poulin leaving the premises in his car. As she entered the apartment, the complainant came downstairs from Carol's to meet her, accompanied by Michael and Johnnie. When the two boys left, the complainant told her mother about the assault that morning and also recounted a number of earlier assaults that included the incidents of February 6, 1976.
Poulin's hearsay objections relate to the testimony of Sandra, Carol, and Michael, one of the boys who lived upstairs. Sandra and Carol each repeated out-of-court statements made by the complainant on June 30 concerning the assault that had occurred that morning. Michael testified also that the complainant had described the assault to him, but the trial justice excluded testimony about the details of that conversation. Instead, the trial justice ruled that Michael could repeat statements that he heard the complainant make to Carol. As a result, Michael testified that he observed a conversation between Carol and the complainant but could not hear what was said. Defense counsel objected to the testimony of Michael, Carol, and Sandra at trial, claiming that each account contained inadmissible hearsay evidence. Poulin reasserts those objections on appeal and claims that the trial justice committed reversible error because he permitted those witnesses to repeat statements made by the complainant on June 30. We therefore must examine the rulings of the trial justice with respect to the disputed portion of each witness's testimony.
We have often stated that hearsay is an out-of-court statement offered to prove the truth of the matter asserted in that statement. E. g., State v. Santos, R.I., 413 A.2d 58 (1980); State v. Angell, R.I., 405 A.2d 10 (1979); State v. Andrews, R.I., 390 A.2d 926 (1978). Testimony containing an out-of-court statement that is offered for another purpose is not hearsay. State v. Santos, supra; State v. Palmigiano, 112 R.I. 348, 309 A.2d 855 (1973); Allen v. D'Ercole Construction Co., 104 R.I. 362, 244 A.2d 864 (1968).
Upon application of these standards, our review of the transcript clearly discloses that the contested portion of Michael's testimony was not hearsay. After Poulin's counsel objected to Michael's testimony, the trial justice cautioned the jury against using that testimony as evidence that the assault occurred and stated that he admitted it as corroborative of the complainant's testimony that statements were made. Furthermore, Michael testified only that he observed a conversation; he did not repeat statements made by the complainant at that time. In view of the cautionary instruction and the substance of Michael's testimony, we conclude that his testimony was not hearsay.
Carol, the adult neighbor, testified to the substance of the complainant's out-of-court statements after the trial justice ruled her testimony admissible to corroborate that of the complainant. According to Poulin, however, we must review Carol's testimony as hearsay admitted for its full probative value because the complainant's credibility was not impeached on matters covered by Carol's testimony. For support, he relies on the principle discussed in State v. Ouimette, 110 R.I. 747, 760, 298 A.2d 124, 133 (1972) that prior out-of-court statements adduced to buttress the in-court testimony of a witness are not admissible unless the credibility of that testimony has been impeached. We do not reach the issue of whether the trial justice erred in admitting Carol's testimony for corroboration, because Poulin's counsel objected to Carol's testimony only on the hearsay ground. In response to that objection the trial justice ruled that he would allow Carol's testimony for the more limited purpose of corroboration, thereby in effect sustaining the hearsay objection. Trial counsel's failure to object to admission of that testimony for the limited purpose of corroboration, precludes our consideration of the trial justice's ruling to that effect for the first time on appeal. State v. Pope, R.I., 414 A.2d 781 (1980); State v. Freitas, R.I., 399 A.2d 1217 (1979); State v. Crescenzo, 114 R.I. 242, 332 A.2d 421 (1975).
In contrast to his instruction concerning Michael's testimony, the trial justice did not caution the jury that Carol's testimony was to serve only as evidence of corroboration. In the absence of such an instruction, Poulin claims that we must reach his contention that Carol's testimony contained inadmissible hearsay. We note, however, that it is "the duty of counsel to direct the attention of the trial court to whatever circumstances exist in the case which, in his opinion, would warrant the giving of the cautionary instruction." State v. Harris, 106 R.I. 643, 646, 262 A.2d 374, 376 (1970). See Allen v. D'Ercole Construction Co., 104 R.I. at 366-368, 244 A.2d at 869. See also State v. Quattrocchi, 103 R.I. 115, 123-24, 235 A.2d 99, 104 (1967).
The record in this case discloses that Poulin's counsel failed to request the trial justice to instruct the jury on the limited purpose for which Carol's testimony was admitted. His hearsay objection constituted the sum of his efforts "to direct the attention of the trial court" to the need for a cautionary instruction. However, a cautionary instruction must be requested expressly. State v. Harris, 106 R.I. at 646, 262 A.2d at 376. We shall not view counsel's hearsay objection to testimony subsequently admitted for purposes of corroboration as an implicit request for a cautionary instruction. See Commonwealth v. Gore, --- Pa.Super. ---, 396 A.2d 1302 (1978). Thus, Poulin's counsel should have expressly requested a cautionary instruction if he feared that the jury would misuse Carol's testimony. His failure to request a cautionary instruction at trial forecloses on appeal consideration of the prejudicial effect of testimony admitted without such an instruction. State v. Harris, supra.
Poulin objects to the testimony of Sandra, the complainant's mother, on two grounds. He claims first that the statements contained inadmissible hearsay evidence and second that they contained highly prejudicial references to Poulin's prior assaults on the complainant. In opposition, the state contends that neither of Poulin's objections are properly before this court. According to the state, the trial justice admitted Sandra's testimony for the same purpose that he admitted the testimony of Carol and Michael. Thus, the state considers trial counsel's failure to request a jury instruction limiting the permissible use of Sandra's testimony fatal to Poulin's hearsay objection. In regard to Poulin's second objection, the state claims that counsel neither objected nor requested a cautionary instruction when Sandra alluded to Poulin's prior assaults on the complainant. The state therefore urges this court to reject Poulin's objections to Sandra's testimony as improperly raised.
Our review of the trial justice's decision to admit Sandra's testimony reveals that he relied on the spontaneous-utterance exception to the hearsay rule. 1 We therefore reject the state's claim that Sandra's testimony was admitted only to corroborate that of the complainant and that counsel should have requested a cautionary instruction to that effect. We therefore consider Poulin's contention that Sandra's testimony included inadmissible hearsay evidence.
In State v. Jalette, R.I., 382 A.2d 526 (1978), we discussed the spontaneous-utterance exception in relation to a case that also involved a sex offense against a young girl. We stated that "(w)hile there is no explicit rule as to what constitutes an admissible spontaneous utterance, it is recognized that each statement must be considered within the context of the circumstances which prevailed at the time of its utterance." Id., 382 A.2d at 530. We ruled also...
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